James Wurth v. Commercial Electronics, Inc.

2018 WL 5255164 (Mo.Lab.Ind.Rel.Com.)

Factual Background:

The ALJ was Judge Edwin Kohner and the plaintiff’s attorney was David Plufka.  Claimant was a manufacturing manager at Commercial Electronics who suffered a low back disc injury in 2008 while carrying heavy cable boxes.  He had three prior back operations and had two prior WC claims; the first settled for 45% PPD to the left foot, the second settled for 25% PPD to the neck and 35% PPD to the low back.  This claim settled for 25% PPD to the low back, but the issue remains as to whether the Second Injury Fund has any liability for permanent total disability.  The case turns on when the claimant became permanently totally disabled.  This case involves a 2008 injury which pre-dates the 2014 changes.

Commission Decision:

The Commission affirmed the denial of additional permanent disability benefits from the Second Injury Fund because Section 287.220 does not authorize any Second Injury permanent disability benefits if the claimant is unemployable in the open labor market prior to the work related injury.

Analysis/Holding:

For SIF to be liable for permanent total disability benefits, the claimant must establish that (1) he suffered from a permanent partial disability as a result of the last compensable injury, and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability.  Therefore, the first assessment is whether the last compensable injury, standing alone, resulted in the claimant’s permanent total disability.  If so, SIF would have no liability.  The ALJ and the Commission looked at the extensive prior PPD (25% neck, 35% low back, 45% left foot) and his current job duties which were heavily accommodated, in deciding the claimant was already unemployable in the open labor market prior to the latest work injury.  The ALJ cited case law stating: a claimant can be totally disabled even if able to perform light duty work. – Molder v. Missouri State Treasurer, (Mo. Ct. App. 2011), citing Cooper v. Med. Ctr. of Indep.

The Takeaway:

(1) Section 287.220 does not authorize any Second Injury permanent disability benefits if the claimant is unemployable in the open labor market prior to the work related injury.  (2) A claimant can be found permanently totally disabled even if able to perform light duty work.